The fundamental right to privacy wins again: Consensual same-sex relationships no longer a crime in India

Martin Luther King Jr. said, "Injustice anywhere is a threat to justice everywhere." The Supreme Court of India, in its September, 2018 judgement — Navtej Singh Johar vs. Union of India, both cited and lived up to this quote when it declared certain parts of Section 377 of the Indian Penal Code unconstitutional as they were in violation of the constitutionally protected fundamental rights of the LGBT community in India.

The fundamental rights that have been held to be violated by S. 377 are the right to privacy, dignity, equality, liberty and freedom of expression as enshrined in Articles 14, 15, 19 and 21 of the Constitution of India. While there are many facets to the 377 judgement, this article analyses it in light of the newly elevated right to privacy as a facet of right to life and personal liberty which is protected under Article 21 of the Constitution.

The curious case of S. 377

This gender neutral and widely worded S. 377 criminalized "carnal intercourse against the order of nature," thus even treating private consensual same-sex relationships as a crime. Maximum punishment for violation is imprisonment for life. The 377 judgement has decriminalized only that part of the section which dealt with consensual sex between adults. The section shall continue to govern non-consensual offenses against adults, sexual offenses against minors and bestiality. Any reference to S. 377 here shall thus be construed accordingly.

Owing to its commonwealth origins, similar sections were and, in some cases, still are present in other common law countries in varying degrees. For example, Section 377A of Singapore’s Penal Code which criminalizes consensual sex between adult men.

What also sticks out is that Thomas Babington Macaulay’s (who prepared an earlier draft of the code in 1837 and referred to S. 377 as an odious class of offense) tragicomic original draft of this section would even punish if one person touches another for the purpose of gratifying unnatural lust. Thankfully this initial draft did not end up in the code.

It is surprising that this colonial-era section survived for more than 150 years, when during this time a consensus has developed across several geographies that that such law contravenes the rights to equality, privacy and freedom from discrimination. One reason for its survival, which can be deciphered from the 377 judgement, is that social morality and majoritarian perception was being given more importance than constitutional morality. This reason, in my view, does not hold water as there is no concrete evidence to suggest that there was any majoritarian perception against decriminalizing S. 377. Instead, there is plenty to suggest glorification of all pro-privacy and pro-LGBT judgements by the Indian media.

Government/legislative inaction on S. 377 and earlier stand of the Supreme Court on right to privacy

Whatever be the actual reasons for S. 377’s survival, the fact is that the government was for a long time even reluctant to take any stand on this before the courts. The legislature showed similar unwillingness by not deleting it despite the Law Commission’s recommendation. Until recently, the Supreme Court also has been unable to fill this void created by government and legislative inaction. So for example, when in 2013, the question of unconstitutionality of this section came before the court in Suresh Kumar Koushal vs. Naz Foundation, it was held that S. 377 did not suffer from any constitutional infirmity and also that there was no fundamental right to privacy. The court surprisingly observed that, since only a minuscule fraction constitute LGBTs, there cannot be any basis for declaring the Section ultra vires. This decision also set aside an earlier path-breaking decision of the Delhi High Court in 2009, which decriminalized S. 377 and observed that the right to live with dignity and the right to privacy are both recognized as dimensions of Article 21.

The landmark privacy judgement in 2017

It then required a 13 judge bench of the Supreme Court in Justice KS Puttaswamy vs. Union of India to set things right in 2017, by unanimously declaring that there is a fundamental right to privacy in favor of all persons (including non-citizens) as a facet of Article 21 and that sexual orientation is an essential component of the right to privacy.

It is important to understand that once given a fundamental right status, the exercise of that right is largely insulated from any contempt by the legislature or even by popular majority. Raising it further to the level of Article 21 makes it almost supreme because, apart from being one of the basic features of the Constitution, this article cannot even be suspended during national emergency.

This privacy judgement, however, could not determine the constitutional validity of S. 377 since this question was pending consideration before another bench of the court. But after this, the fallacious Koushal judgement had become unsustainable and its overruling was only a matter of time.

377 Judgement, the last nail in S. 377’s coffin

The Supreme Court, after testing the constitutionality of this section, declared parts of S. 377 unconstitutional. The Koushal judgement, which ignored the concepts of privacy, individual choice and the orientation, thus stands overruled.

In order to give this knockout blow to S. 377 the court relied heavily on the new intellection of the elevated right to privacy and the previous pro-privacy judgements, particularly the privacy judgement.

Some salient points observed by the court on the interplay between right to privacy and S. 377 are as follows:

Sexual orientation is a facet of privacy

Sexual orientation is an essential and innate facet of privacy and includes the right of every individual to express their choices in terms of sexual inclination. An essential part of exercising the right to privacy, specifically in the case of LGBTs, is the individual’s right to a "self-determined sexual orientation."

Impact of S. 377 on the right to privacy

377 denies only certain acts and not relationships, however, since conduct (sexual) and identity (of LGBT) is intrinsically linked in this case, it changes the way society perceives the LGBT community — as criminals. The taint of unnaturalness that the section refers to gives more credence to the already existing heteronormative framework. Consequently, LGBTs are then unable to fully express their sexual orientation which not only deprives them of their freedom of expression but also denies them right to privacy.

Public and private spaces

Sexual privacy gives protection to LGBTs behind closed doors, but they are still vulnerable in public spaces (presumed to be heteronormative). The right to sexual privacy must thus allow them to exercise the right also in public places. For this to be actuated, sexuality (and consequently, sexual privacy) should be given a much wider meaning as a fundamental experience through which individuals define the meaning of their lives and it should not be reduced only to a binary formulation or as a means to procreation.

Violative of Article 21

The court finally held that section is violative of Article 21, which encompasses all aspects of the right to live with dignity, the right to privacy, and the right to autonomy and self-determination with respect to the most intimate decisions.

A process, not an event

While the 377 judgement is an important milestone from a privacy perspective and a landmark one for decriminalizing S. 377, its precursor — especially the privacy judgement, should not be ignored. Not only the 377 Judgement, but also the other steps being taken in the direction of privacy protection (such as the upcoming data privacy legislation) would have been severely undermined if the Supreme Court had not so emphatically supported the right to privacy in the privacy judgement. This view also finds support from the recent data protection committee report which pointed out that even the normative foundation of the proposed data protection framework is true to the ratio of the privacy judgement. The 377 judgement should thus be seen from a holistic perspective as a small but important part of a process, with several breaks in between, rather than one single judgement which turned the tide.

Conclusion

Although it took over 70 years since independence to decriminalize S. 377, the decriminalization is certainly a step forward in the direction of a more inclusive society. This, however, also has full potential to stir up a hornet’s nest touching upon diverse topics of law and policy relating to LGBTs — such as, same-sex marriage, adoption, domestic violence, divorce, inheritance, discrimination and social exclusion. Since the decision on most of these issues will not be in the hands of the Supreme Court, legislative change and government intervention is the only option to resolve them. But having seen the reluctance of the government and the legislature on the S. 377 issue so far, such resolution appears to be only a distant possibility.

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